Happy anniversary Citizens United (not)

“At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

That’s what Supreme Court Justice John Paul Stevens wrote in dissent ten years ago in the landmark case Citizens United v. Federal Election Commission. The decision by the Court’s conservative majority overturned a century of law to allow corporations to spend unlimited amounts of money in federal elections. The Court ruled that the free speech clause of the First Amendment of the U.S. Constitution prohibits the government from restricting spending for political communications by corporations, non-profits, labor unions, and other organizations.

Stevens argued that the Court's ruling "threatens to undermine the integrity of elected institutions across the Nation…A democracy cannot function effectively when its constituent members believe laws are being bought and sold."

The case arose after Citizens United, a non-profit organization, wanted to broadcast a film critical of Democratic presidential candidate Hillary Clinton shortly before the 2008 Democratic primaries. It would have violated the 2002 Bipartisan Campaign Reform Act which prohibited any corporation or labor union from making an "electioneering communication" within 30 days of a primary or 60 days of an election, or making any expenditure advocating the election or defeat of a candidate at any time.

Stevens, joined in minority dissent by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, based his position on seven points. First was his concern about corruption. He argued that even if campaign spending in exchange for votes could not be shown, contributors gain political access as a result of such spending, and greater spending leads to more influence than direct campaign contributions.

Second, Stevens argued that the majority did not place enough emphasis on the need to prevent the "appearance of corruption." Earlier court cases recognized the importance of public confidence in democracy. Stevens cited data that indicated 80 percent of the public view corporate independent spending as a way to gain unfair legislative access. He predicted that if the public believes that corporations dominate elections, disaffected voters will stop participating.

Third was the role of corporations in the political process. Stevens argued that the qualities of corporations and other artificial legal entities made them dangerous to democratic elections. They can raise large amounts of money, have limited liability, no right to vote, no morality, no purpose besides making profits, and no loyalty. These entities Stevens wrote, are not "We the People" for whom the Constitution was established, and should not be given speech protections under the First Amendment.

Fourth, Stevens had concerns about freedom of speech. Corporations unfairly influence the electoral process with sums of money that few individuals can match. The court’s decision, he argued, protects this type of speech which gives the impression of widespread agreement on the issues regardless of actual support. 

Fifth was his doubt about media censorship. He disagreed with the opinion of the majority that the government would be censoring the media by limiting independent expenditures. He believes that the press can be distinguished from other persons and entities that are not the press, and that the free press clause demonstrates "that the drafters of the First Amendment did draw distinctions—explicit distinctions—between types of ‘speakers,’ or speech outlets or forms."

Sixth was his fear of losing faith in our democracy. Stevens predicted that this decision would restrict the states’ ability to prevent corruption in elections, and would make it difficult for any campaign finance regulations to be upheld in future cases. 

His final point was shareholders’ rights. Because shareholders invest money in corporations, Stevens argued that the law should protect shareholders from funding speech they oppose. According to Stevens, the shareholders have few options, giving them "virtually nonexistent" recourse for opposing a corporation's political spending. By the time shareholders learn out about a corporation's political spending, the damage is done and the shareholders have funded speech they disagree with..

How much money have corporations spent to influence elections since 2010? More than 2,200 corporations reported donations to over 500 super PACs; 30 corporate trade groups – which do not disclose their donors – also spent heavily to influence elections. The surge in corporate spending primarily benefited a handful of super PACs dedicated to electing Republican candidates; the top 20 recipients received 74 percent of the total disclosed corporate donations. The 18 top super PACs that exclusively or almost exclusively supported Republican candidates account for 93 percent of the top spenders and 69 percent of all disclosed corporate election spending.

What is the difference between bribery and corporate political campaign funding? Thanks to Citizens United, the answer is somewhere between nothing and very little.

Mark Berg is a community activist, a proud Liberal, and a former socialist. His email address is MABerg175@comcast.net.